Citation Nr: 0803992
Decision Date: 02/04/08 Archive Date: 03/27/08
Citation Nr: 0803992
Decision Date: 02/04/08 Archive Date: 02/12/08
DOCKET NO. 95-01 316 ) DATE FEB 04 2008
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for
residuals of a total laryngectomy, left modified radical neck
dissection and right modified radical neck dissection,
performed on June 18, 1999.
REPRESENTATION
Veteran represented by: Daniel G. Krasnegor, Attorney
at Law
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
INTRODUCTION
The veteran served on active duty from January 1961 to
December 1963.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a January 2000 rating action by the
Department of Veterans Affairs (VA) Regional Office (RO)
located in Houston, Texas, which denied the benefit sought on
appeal. In a September 2002 decision, the Board denied the
veteran's claim.
The veteran appealed the September 2002 Board decision to the
United States Court of Appeals for Veterans Claims (Court).
In June 2003, the parties submitted a Joint Motion to Vacate
the Board Decision and to Remand for Readjudication. By a
June 2003 Order, the Court granted the parties' joint motion,
vacated the Board's September 2002 decision, and remanded the
case to the Board for readjudication of the claim consistent
with the considerations discussed in the joint motion.
In an April 2004 decision, the Board remanded this case for
additional development. By an April 2005 decision, the Board
denied the veteran's claim for section 1151 compensation.
The veteran then appealed the Board's April 2005 decision to
the Court. In an August 2007 memorandum decision, the Court
reversed the Board's April 2005 decision and remanded the
case for action consistent with the Court's decision. A
September 2007 Court order entered that judgment.
VACATUR
The Board may vacate an appellate decision at any time upon
request of the appellant or his or her representative, or on
the Board's own motion, when an appellant has been denied due
process of law or when benefits were allowed based on false
or fraudulent evidence. 38 U.S.C.A. § 7104(a) (West 2002);
38 C.F.R. § 20.904 (2007).
In this case, the Board issued a decision on April 6, 2005,
which denied the veteran's claim for section 1151
compensation. The veteran appealed the Board's decision to
the Court, and in an August 2007 memorandum decision, the
Court reversed the Board's April 2005 decision and remanded
the case to the Board. However, the Board notes that the
Court did not actually vacate the Board's decision.
Nevertheless, the Board considers vacatur of the April 6,
2005, Board decision inherent to the August 2007 Court
memorandum decision.
Accordingly, the April 6, 2005, Board decision addressing the
issue of entitlement to compensation under 38 U.S.C.A. § 1151
for residuals of a total laryngectomy, left modified radical
neck dissection and right modified radical neck dissection,
performed on June 18, 1999, is vacated. A new decision is
being simultaneously rendered on that matter, and that
decision will be entered as if the April 6, 2005, Board
decision had never been issued.
ORDER
The April 6, 2005, Board decision is vacated.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
Citation Nr: 0510038
Decision Date: 04/06/05 Archive Date: 04/15/05
DOCKET NO. 95-01 316 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for
residuals of a total laryngectomy, left modified radical neck
dissection and right modified radical neck dissection,
performed on June 18, 1999.
REPRESENTATION
Appellant represented by: Kathleen S. Pirri, attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Jason R. Davitian, Counsel
INTRODUCTION
The veteran served on active duty from January 1961 to
December 1963.
This case is before the Board of Veterans' Appeals (BVA or
Board) on appeal from a January 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Houston, Texas (RO), which denied the benefit sought on
appeal. In September 2002, the Board denied the veteran's
claim.
The veteran appealed the September 2002 Board decision to the
United States Court of Appeals for Veterans Claims (Court).
In June 2003, the parties submitted a Joint Motion to Vacate
the BVA Decision and to Remand for Readjudication. The joint
motion noted that a remand was necessary because the Board
had failed to discuss any medical evidence supporting its
finding that the June 1999 surgical procedure did not result
in additional disability that was the result of carelessness,
negligence, lack of proper skill, error in judgment or
similar fault on the part of VA in furnishing the medical
treatment; did not address a VA physician's finding that the
veteran had limitation of the left shoulder motion as a
result of the surgery; and did not attempt to obtain a
medical opinion assessing the veteran's residual disabilities
and addressing which residuals were, or were not, reasonably
foreseeable as a result of the surgery.
In a June 2003 order, the Court granted the parties' joint
motion, vacated the Board's September 2002 decision, and
remanded the case to the Board for readjudication of the
claim consistent with the considerations discussed in the
joint motion.
In April 2004, the Board remanded the case for additional
development. VA examiners conducted examinations in
September 2004. In a December 2004 supplemental statement of
the case (SSOC), the RO denied the appellant's claim.
The case is now before the Board for final appellate
consideration.
FINDINGS OF FACT
1. All reasonable development and notification necessary for
the disposition of this case has been completed.
2. The record does not contain a consent form signed by the
veteran for the surgical procedure performed on June 18,
1999, and the veteran maintains that he never signed such a
form, nor consented to the type of surgery that was
performed.
3. The VA medical records on file reflect that multiple
clinicians affirmed immediately prior to the veteran's June
18, 1999, surgery that he was informed about the full nature
and consequences of this procedure, that he had consented to
the procedure, and that a signed consent form was of record
at that time.
4. The record does not show that the June 18, 1999, surgical
procedure resulted in an additional disability to the veteran
that was the result of carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on the part of VA in furnishing this medical treatment.
CONCLUSION OF LAW
The criteria for compensation under 38 U.S.C.A. § 1151 for
residuals of a total laryngectomy, left modified radical neck
dissection and right modified radical neck dissection,
performed on June 18, 1999, have not been met. 38 U.S.C.A.
§§ 1151, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.358
(2003), and 3.358(a) as amended at 69 Fed. Reg. 46426-46435
(August 3, 2004), codified at 38 C.F.R. § 3.361 (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA has a duty to assist the appellant in the development of
facts pertinent to his claims. On November 9, 2000, the
President signed into law the VCAA, Pub. L. No. 106-475, 114
Stat. 2096. This law redefines the obligations of VA with
respect to the duty to assist and includes an enhanced duty
to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
First, VA has a duty to notify the appellant of any
information and evidence needed to substantiate and complete
a claim. 38 U.S.C.A. §§ 5102, 5103; 38 C.F.R. § 3.159(b)
(2004). Information means non-evidentiary facts, such as the
claimant's address and Social Security number or the name and
address of a medical care provider who may have evidence
pertinent to the claim. See 66 Fed. Reg. 45620, 45,630
(August 29, 2001); 38 C.F.R. § 3.159(a)(5) (2004). Second,
VA has a duty to assist the appellant in obtaining evidence
necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159(c) (2004).
The appellant filed his claim before the enactment of the
VCAA. The regulations issued to implement the VCAA are
expressly applicable to "any claim for benefits received by
VA on or after November 9, 2000, the VCAA's enactment date,
as well as to any claim filed before that date but not
decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug.
29, 2001). See also VAOPGCPREC 7-2003. Therefore compliance
with the VCAA is required with regard to the claim.
The Board finds that VA's duties to the appellant under the
VCAA have been fulfilled with respect to the claim now before
the Board. Discussions in the January 2000 rating decision
on appeal, the April 2000 statement of the case (SOC), and
various SSOCs, including the most recent dated in December
2004, adequately informed him of the information and evidence
needed to substantiate all aspects of his claim.
A VCAA notice letter dated in June 2004 informed the veteran
of the VCAA's implementing regulations, including that VA
would assist him in obtaining government or private medical
or employment records, provided that he sufficiently
identified the records sought and submitted releases as
necessary. The Board finds that this document shows that the
appellant was notified of the evidence needed to substantiate
his claim and the avenues through which he might obtain such
evidence, and of the allocation of responsibilities between
himself and VA in obtaining such evidence. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002).
In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini
II, which replaced the opinion in Pelegrini v. Principi, 17
Vet. App. 412 (2004) (Pelegrini II)), the Court held that a
VCAA notice must be provided to a claimant before the
"initial unfavorable [agency of original jurisdiction (AOJ)]
decision on a service-connection claim."
In this case, VCAA notice was not provided to the veteran
before the rating decision on appeal; however, the rating
decision on appeal was entered before the enactment of VCAA.
Obviously, VA could not have informed the veteran of law that
did not yet exist. Moreover, in Pelegrini II, the Court also
made it clear that where, as in this case, notice was not
mandated at the time of the initial RO decision, the RO did
not err in not providing such notice complying with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) because an
initial RO decision had already occurred. Also see O.G.C.
Prec. Op. No. 7-2004.
The Board further notes that, in order to comply with
38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice
must: (1) inform the claimant about the information and
evidence not of record that is necessary to substantiate the
claim; (2) inform the claimant about the information and
evidence that VA will seek to provide; (3) inform the
claimant about the information and evidence the claimant is
expected to provide; and (4) request or tell the claimant to
provide any evidence in the claimant's possession that
pertains to the claim, or something to the effect that the
claimant should "give us everything you've got pertaining to
your claim(s)." This new "fourth element" of the notice
requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1).
In the instant case, although the VCAA notice provided to the
appellant does not contain the precise language of the
"fourth element," the Board finds that the appellant was
otherwise fully notified of the need to give VA any evidence
pertaining to his claim. The June 2004 VCAA notice letter
requested that "[i]f there is any other evidence or
information that you think will support your claim, please
let us know."
VCAA only requires that the duty to notify is satisfied, and
that claimants are given the opportunity to submit
information and evidence in support of their claims. Once
this has been accomplished, all due process concerns have
been satisfied. See Sutton v. Brown, 9 Vet. App. 553 (1996);
Bernard v. Brown, 4 Vet. App. 384 (1993). In the case of the
appellant's claim, because each of the four content
requirements of a VCAA notice has been fully satisfied, any
error in not providing a single notice to the appellant
covering all content requirements is harmless error.
Moreover, in a recent opinion, VA General Counsel held that
section 5103(a) does not require VA to seek evidence from a
claimant other than that identified by VA as necessary to
substantiate the claim. See VAOPGCPREC 1-2004.
The are new regulations implementing 38 U.S.C.A. § 1151.
These became effective September 2004. See 66 Fed. Reg.
46426-46434 (Aug. 3, 2004) (to be codified at 38 C.F.R. §
3.361 et seq.). While the veteran has not been informed of
these regulations, they essentially detail the statute. As
such, further development is not indicated. There is no new
standard provided, other than that for which notice has been
given. As such, the Board can proceed without prejudice to
the veteran.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A. In this case, VA has obtained the veteran's service
medical records and all available post-service medical
records.
As to any duty to provide an examination and/or seek a
medical opinion for the veteran's claim, the Board notes that
in the case of a claim for disability compensation the
assistance provided to the claimant shall include providing a
medical examination or obtaining a medical opinion when such
examination or opinion is necessary to make a decision on the
claim. An examination or opinion shall be treated as being
necessary to make a decision on the claim if the evidence of
record, taking into consideration all information and lay or
medical evidence (including statements of the claimant)
contains competent evidence that the claimant has a current
disability, or persistent or recurring symptoms of
disability; and indicates that the disability or symptoms may
be associated with the claimant's act of service; but does
not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R.
§ 3.159(c)(4).
The veteran was afforded a VA examinations with regard to his
current claim in September 2004, which included medical
opinions addressing the questions at hand. The Board finds
that the relevant medical evidence of record, to include the
reports of these VA examinations, contains sufficient detail
to make a decision on the veteran's claim. Thus, there is no
duty to seek any additional medical opinion with regard to
his claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).
During the pendency of his claim the appellant has been
afforded opportunities to submit information relating to any
additional evidence that may be available. He has failed to
identify any sources of additional outstanding evidence or
indicate that he was in the process of obtaining additional
evidence. It is clear that there is no additional relevant
evidence that has not been obtained and that the appellant
desires the Board to proceed with its appellate review. See
Quartuccio, supra.
Based on the foregoing, the Board finds that, in the
circumstances of the veteran's claim, any additional
development or notification would serve no useful purpose.
See Soyini, supra (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided); Wensch v. Principi, 15 Vet. App.
362, 368 (2001) (when there is extensive factual development
in a case, reflected both in the record on appeal and the
Board's decision, which indicates no reasonable possibility
that any further assistance would aid the appellant in
substantiating his or her claim, the VCAA does not apply).
The Board finds that the duty to assist and duty to notify
provisions of the VCAA have been fulfilled to the extent
possible with regard to his claim. Thus, no additional
assistance or notification to the appellant is required based
on the facts of the instant case, there has been no prejudice
to the appellant that would warrant a remand, and his
procedural rights have not been abridged. Bernard, supra.
Factual Background
The veteran has offered contentions during a July 2002
hearing before the undersigned Veterans Law Judge and in
various statements. The Board will address his contentions
together for the sake of clarity. The veteran maintains that
he never signed a consent form for the June 18, 1999,
surgical procedure. He acknowledged that he did consent to a
procedure performed on June 11, 1999, but that he never
signed such a form for June 18, 1999, and that he would never
have consented to such an extensive a procedure as was
performed on June 18, 1999. In addition, he testified that
he thought that the June 18, 1999, procedure would be the
same as the one performed on June 11, 1999, and that he then
planned to take his biopsies and get another opinion about
his treatment options.
The veteran has identified the additional disorders
purportedly resulting from the June 18, 1999, surgery as a
knot on the left side of the face (that covers the jaw);
swelling and choking of the throat; severance of a nerve of
the right arm; bilateral visual impairment of blurring;
headaches (temples, forehead, back of head); blood clot in
the jugular vein; dizziness with blackouts; weakness in the
legs, knees, and feet; and limitation of motion of the left
shoulder.
The record before the Board contains service medical records
and post-service medical records, which will be addressed as
pertinent. Dela Cruz v. Principi, 15 Vet. App. 143, 148-49
(2001) (a discussion of all evidence by the Board is not
required when the Board has supported its decision with
thorough reasons and bases regarding the relevant evidence).
The medical evidence on file reflects that the veteran sought
treatment in April 1999 for complaints of a sore throat,
hoarseness, headaches, productive cough, dark blood noted in
his phlegm, and weight loss. It was also noted that the
right side of his neck had been swollen for the past 2
months. Records from later that month reflect that it was
believed his symptoms were caused by the growth in his
throat, and that laryngeal cancer was suspected. It was
stated that observation would not be useful, and that
treatment should include diagnostic studies and treatment.
Moreover, it was stated that, with the fixation of the right
cord and presence of cervical adenopathy, the veteran was
staged at least "T3N2A," and that he would be a poor
radiation therapy or chemotherapy candidate. The best
prognosis was believed to be a surgical excision and probable
post-operative radiation therapy. Further, the veteran was
informed that due to the advanced stage of his primary tumor,
he might require a tracheotomy for airway establishment "and
or not tolerate" extubation from a general anesthesia; that
would be required for direct laryngoscopy. It was stated
that a tracheotomy separate from a laryngectomy could
increase local failure chances and was not recommended.
However, it was noted that the veteran was still thinking
about his options.
Subsequent records dated June 11, 1999, note that the veteran
had refused the original offer of a tracheotomy with direct
laryngoscopy and biopsy, and that he returned 2 days prior to
his current admission complaining of severe odonophasia,
dysphasia, weight loss, and mild difficulty breathing. He
was admitted and initially refused tracheotomy and biopsy of
laryngeal lesion, but he decided to have this procedure on
June 11, 1999. It was noted that all of the risks and
benefits of this procedure were discussed with the veteran,
and that he wished to proceed. Also on file is a consent
form signed by the veteran, and dated June 11, 1999. This
form reflects that the operation or procedure was identified
as awake tracheotomy, direct laryngoscopy, esomagoscopy, and
biopsy; that the nature and purpose of this procedure was to
establish airway, evaluate lesion, and take biopsies. A
counseling physician stated that he counseled the veteran as
to the nature of the procedure, as well as the attendant
risks, and provided a list thereof. The veteran asserted
that he understood the proposed procedure, attendant risks,
expected results, and that he requested such procedure be
performed.
VA medical records dated June 15, 1999, note that the
preliminary pathology had revealed a "T4N2B" lesion, and that
the veteran was advised that the treatment for this lesion
would be total laryngectomy, bilateral neck dissections with
post-op radiation therapy. The veteran was seen later that
day by a speech/language pathologist for pre-op total
laryngectomy counseling, and that he had been referred by Dr.
K. of the ENT clinic. It was noted that the veteran had been
diagnosed with large laryngeal and supraglottic basosquamous
cell carcinoma; that the planned treatment was surgery
followed by radiation therapy; that he was fully informed of
this diagnosis by his physicians, and exhibited his
understanding of this information by explaining it to the
speech/language pathologist; that his counseling included a
discussion of post-surgery changes, and a video of men and
women who were post total laryngectomy. Follow-up records
from June 17 note that the veteran had read all the
literature provided, and did not have any additional
questions at that time.
A June 16, 1999, VA social work note signed by Dr. G. stated,
in part, that the consent was signed by the veteran and on
his chart.
A VA medical record dated the morning of June 17, 1999, notes
that the veteran was seen at bedside; reported that he was
unable to swallow either liquids or solid foods; that when
options for placement of feeding tube were discussed, the
veteran stated that he would agree to this if necessary; and
that when asked about plan for surgery, the veteran stated
that he was refusing surgery. Diagnosis was laryngeal cancer
with mets, status-post tracheostomy, total laryngectomy
planned with bilateral neck dissection. Additional records,
also dated June 17, 1999, and signed by Dr. J., notes that
the veteran's case had been reviewed by the Head/Neck Tumor
Board, and that total laryngectomy, neck dissections, and
post-operative radiation therapy had been recommended. It
was further noted that he had been seen by Social Work and
Speech Pathology; that Dr. K., in the presence of both Dr. J.
and Dr. C., explained the nature of the surgery in detail and
the common complications. Moreover, it was stated that the
veteran was given time to consider the recommendations and
ask further questions, and that later that day he signed his
operative permit and indicated to Dr. K. that he wished to
proceed with his surgery.
The evidence on file also includes a June 17, 1999, VA
medical record signed by Dr. K. who noted that he had
discussed the total laryngectomy, bilateral neck dissection,
including risks and benefits with the veteran in detail, and
that both Dr. G. and Dr. J. were present. Further, Dr. K.
noted that the veteran had asked appropriate questions and
understood the procedure; that after considering his options,
the veteran consented to the procedure. It was noted that he
did not want a Foley catheter to be placed, but Dr. K.
informed him that it would be necessary as part of the
procedure, and would be removed as soon as possible post-
operatively.
The record reflects that the veteran subsequently underwent a
total laryngectomy with right modified radical neck
dissection with sacrifice of SCM and IJ, left lateral neck
dissection on June 18, 1999. However, no signed consent form
appears to be of record. There is a pre-operative checklist,
signed by a nurse on June 17, 1999, which noted, in part,
that informed consent was completed and signed within 5
calendar days of scheduled surgical procedure. Further, a
June 18, 1999, pre-anesthetic note from the staff
anesthesiologist noted that the risks and benefits of the
anesthesia plan were discussed with the veteran, that the
veteran was given an opportunity to ask questions, and that
he had consented to this procedure. The surgical report
itself also noted that the veteran had consented to this
procedure.
Various post-surgical medical records are on file from June
and July 1999. Nothing in these treatment records reflect
that the veteran did not consent to the June 18, 1999,
procedure.
A December 1999 statement from a VA staff physician provides
that she had treated the veteran since July 1999. Secondary
to the surgery performed on June 18, 1999 (total
laryngectomy, left modified radical neck dissection and right
modified radical neck dissection), the veteran had damage to
a nerve in his neck which limited movement of his left
shoulder.
A December 1999 statement from the VAMC Director noted, in
part, that a comprehensive review of the veteran's medical
record did not find a signed consent form for the June 18,
1999, surgery. However, it was noted that the review found
documentation of staff who had seen the consent form.
Specifically, the preoperative screening note by anesthesia
staff indicated that the veteran consented to the procedure,
and that the form was in the medical record; three ENT
physicians stated in their preoperative notes that the
consent form had been signed; a staff nurse verified on the
pre-operative checklist that the consent form was in the
veteran's record before he was transported to the operating
room area; the preoperative anesthesia note from the morning
of the surgery indicated that the consent form was in the
medical record; and a nurse in the OR holding area checked
the veteran's medical record for the consent form at the time
of the surgery, and indicated that the appropriate form was
present and completed. The VAMC Director acknowledged that
it was not clear why the consent form was no longer in the
medical record, but noted that the veteran was transferred
between two surgical nursing units before being admitted to
the Transitional Care Center, and that the consent form could
have been separated from the record during the transfers.
In a September 2000 statement, the veteran's representative,
citing to Moore v. Derwinski, 1 Vet. App. 401, 406 (1991),
noted that when a veteran's service medical records were
unavailable then VA's duty to assist and the Board's duty to
provide reasons and bases for its findings and conclusions
and to consider carefully the benefit of the doubt rule were
heightened. The representative contended that the VAMC
should be held to the same standard for the accountability of
their records.
Pursuant to the Board's April 2004 remand, the veteran was
scheduled for several examinations. The claims file was to
be sent to each examiner for review. Two of the
corresponding reports specifically provide that the veteran's
claims file or VA medical records were reviewed. Each report
sets forth the veteran's medical history in detail,
indicating review of the veteran's record.
The report of a September 2004 VA examination by a dentist
reviews the veteran's pertinent medical history and his
complaints and contentions regarding the surgery. The report
also sets forth the relevant physical and clinical findings.
The examiner concluded that the veteran had multiple decayed
and periodontally infected teeth that were probably not
restorable and should be removed. The mass described by the
veteran under his chin was most likely hypertrophy of the
anterior belly of the digastric muscles which attach to the
lower border of the mandible in this area. Since these were
the major depressors of the mandible for this patient, he had
most likely caused hypertrophy straining to open his jaws.
In the body of the report, the examiner concluded that this
soft tissue mass was normal for the veteran.
The report of a September 2004 VA examination of the
veteran's esophagus and related areas reviews the veteran's
pertinent medical history and his complaints and contentions
related to the surgery. It also sets forth the relevant
physical and clinical findings. The resulting impression
addressed the veteran's contentions.
The knot on the left side of the veteran's face was most
likely post-surgical soft tissue thickening. This was likely
a normal reaction to extensive surgery which involved no
negligence, carelessness or lack of proper skill.
There was no evidence of persistent clot formation in the
veteran's neck, as evidenced by the lack of edema throughout
the neck.
The veteran's symptoms of intermittent spasm followed by
ability to eat normal food was atypical of the dysphagia
resulting from laryngectomy. His excellent alaryngeal speech
was indicative of no significant post-operative pharyngeal or
hypopharyngeal muscular incoordination due to the amount of
air which was needed to be generated for esophageal speech.
There was no weight loss and the veteran appeared to be well
nourished.
The motion of the veteran's left shoulder was somewhat
limited due to scar tissue. Intact shoulder shrug provided
evidence that the 11th cranial nerve was intact. Some
shoulder dysfunction was possible after the necessary
extensive surgery for cancer on June 18, 1999. However, no
specific nerve dysfunction was evident on the examination.
There was no evidence of a severance of a nerve in the right
arm on the examination.
The examiner concluded that evidence supported that it was
not as likely as not that the veteran was injured by any
management/surgery that he received for treatment of his
laryngeal cancer. His subjective complaint might be related
to the cancer and subsequent post-operative scarring after
such required surgical treatment. However, there was no
evidence of proximate cause of injury by carelessness,
negligence, lack of proper skill, error in judgment or fault.
In fact, the veteran's survival for 5 years without evidence
of recurrent regional and/or distant metastatic tumor spread,
despite his refusal of the indicated post-operative radiation
therapy, demonstrated that the surgery was very adequate and
timely.
The report of a September 2004 orthopedic VA examination
reviews the veteran's pertinent medical history and his
complaints and contentions related to the surgery. It also
sets forth the relevant physical and clinical findings. The
examiner provides that the veteran clarified from the onset
that the problem was with his right shoulder. The pertinent
impression was right accessory neuropathic spinal nerve
injury with right trapezium weakness; probable neuropathic
pain process through right spinal accessory nerve and
trapezium with limited range of motion, right shoulder; and
bursitis versus tendonitis, right shoulder, with limited
range of motion and persistent weakness.
The examiner concluded that based on provided medical records
and the current examination results, it is at least as likely
as not that the veteran's current difficulty with regard to
he right shoulder was caused by the surgical treatment of
June 18, 1999. It was noted that injury to the right spinal
accessory nerve was documented by electrodiagnostic
evaluation and was consistent with the surgical treatment
rendered. Thus, it was the examiner's opinion that it is at
least as likely as not that the additional disability was
approximately (sic) caused by the surgery , but was not
necessarily the result of careless negligence, lack of proper
skill, error in judgment or similar instance at fault. It
was further noted that the extensive surgery described had a
certain incidence of injury to the nerves, arteries and
veins, as well as other structures in the cervical region but
an injury of this kind would be considered a complication of
the surgery, but not negligence or outside of the standard of
care.
Legal Analysis
Title 38, United States Code § 1151 provides that, where a
veteran suffers an injury or an aggravation of an injury
resulting in additional disability or death by reason of VA
hospitalization, or medical or surgical treatment,
compensation shall be awarded in the same manner as if such
disability were service-connected.
Amendments to 38 U.S.C.A. § 1151 made by Public Law 104-204
require a showing not only that the VA treatment in question
resulted in additional disability but also that the proximate
cause of the disability was carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on VA's part in furnishing the medical or surgical treatment,
or training and rehabilitation, or that the proximate cause
of additional disability was an event which was not
reasonably foreseeable. These amendments apply to claims for
compensation under 38 U.S.C.A. § 1151 which were filed on or
after October 1, 1997. VAOPGCPREC 40-97, 63 Fed. Reg. 31263
(1998). As the veteran filed his claim after October 1,
1997, the latter version of 38 U.S.C.A. § 1151 applies to his
appeal. Thus, the veteran must show that the proximate cause
of the disability was carelessness, negligence, lack of
proper skill, error in judgment, or similar instance of fault
on VA's part in furnishing the treatment in question.
The current version of the law provides that compensation
shall be awarded for a qualifying additional disability of a
veteran in the same manner as if the additional disability
were service connected. A disability is considered a
qualifying additional disability if it is not the result of
the veteran's own willful misconduct and the disability was
caused by VA hospital care, medical or surgical treatment, or
examination, and the proximate cause of the disability was:
1) carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of the VA
in furnishing the hospital care, medical or surgical
treatment, or examination; or 2) an event not reasonably
foreseeable. 38 U.S.C.A. § 1151 (West 2002).
Where it is determined that there is additional disability
resulting from a disease or injury or an aggravation of an
existing disease or injury suffered as a result of training,
hospitalization, medical or surgical treatment, or
examination, compensation will be payable for such additional
disability.
(b) Additional disability. In determining that additional
disability exists, the following considerations will govern:
(1) The veteran's physical condition immediately prior to the
disease or injury on which the claim for compensation is
based will be compared with the subsequent physical condition
resulting from the disease or injury, each body part involved
being considered separately. (i) As applied to examinations,
the physical condition prior to the disease or injury will be
the condition at time of beginning the physical examination
as a result of which the disease or injury was sustained.
(ii) As applied to medical or surgical treatment, the
physical condition prior to the disease or injury will be the
condition which the specific medical or surgical treatment
was designed to relieve.
(2) Compensation will not be payable under 38 U.S.C. 1151 for
the continuance or natural progress of disease or injuries
for which the training, or hospitalization, etc., was
authorized.
(c) Cause. In determining whether such additional disability
resulted from a disease or an injury or an aggravation of an
existing disease or injury suffered as a result of training,
hospitalization, medical or surgical treatment, or
examination, the following considerations will govern:
(1) It will be necessary to show that the additional
disability is actually the result of such disease or injury
or an aggravation of an existing disease or injury and not
merely coincidental therewith.
(2) The mere fact that aggravation occurred will not suffice
to make the additional disability compensable in the absence
of proof that it resulted from disease or injury or an
aggravation of an existing disease or injury suffered as the
result of training, hospitalization, medical or surgical
treatment, or examination.
(3) Compensation is not payable for the necessary
consequences of medical or surgical treatment or examination
properly administered with the express or implied consent of
the veteran, or, in appropriate cases, the veteran's
representative. ``Necessary consequences'' are those which
are certain to result from, or were intended to result from,
the examination or medical or surgical treatment
administered. Consequences otherwise certain or intended to
result from a treatment will not be considered uncertain or
unintended solely because it had not been determined at the
time consent was given whether that treatment would in fact
be administered.
(4) When the proximate cause of the injury suffered was the
veteran's willful misconduct or failure to follow
instructions, it will bar him (or her) from receipt of
compensation hereunder except in the case of incompetent
veterans. 38 C.F.R. § 3.358(a), (c )(4).
Effective September 2, 2004, VA amended adjudication
regulations concerning awards of compensation or dependency
and indemnity compensation for additional disability or death
caused by VA hospital care, medical or surgical treatment,
examination, training and rehabilitation services, or
compensated work therapy (CWT) program. Under this
amendment, benefits are payable for additional disability or
death caused by VA hospital care, medical or surgical
treatment, or examination only if VA fault or ``an event not
reasonably foreseeable'' proximately caused the disability or
death. Benefits also are payable for additional disability
or death proximately caused by VA's provision of training and
rehabilitation services or CWT program. This amendment
reflects amendments to 38 U.S.C. 1151, the statutory
authority for such benefits.
The regulations have no retroactive effect, and in any event
merely implement existing law. Kuzma v. Principi, 341 F.3d
1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003; 69 Fed. Reg. 25179
(2004). The new regulations, therefore, have no impact on
the decisions reached in this appeal.
Based on a thorough review of the record, the Board finds
that the preponderance of the evidence is against the
veteran's claim for compensation under 38 U.S.C.A. § 1151 for
residuals of a total laryngectomy, left modified radical neck
dissection and right modified radical neck dissection,
performed on June 18, 1999.
The Board recognizes the veteran's contention that he never
signed a consent form for the June 18, 1999, procedure, and
that he would never have consented to such a procedure.
There is no dispute that no signed consent form is on file
for June 18, 1999. However, as detailed above, multiple
clinicians affirmed immediately prior to the veteran's June
18, 1999, surgery that he was informed about the full nature
and consequences of this procedure, that he had consented to
the procedure, and that a signed consent form was of record
at that time. Given these multiple notes, particularly the
extensive pre-operative counseling notes and the pre-
operative checklist which stated that a signed consent form
was of record, the Board concludes that the preponderance of
the evidence shows that the veteran was advised of the nature
of the June 18, 1999, surgical procedure, and that he did
consent to this procedure. The Board also notes that the
June 17, 1999 record, which indicates that the veteran was
initially planning on refusing the surgery, further supports
a finding that he was aware of the nature of this procedure,
in that it shows he was debating about whether he would
proceed with it.
The veteran has contended that he would never have consented
to such a procedure, and that the nurse who signed the
checklist did not state that she actually witnessed the
veteran sign a consent form, only that there was a signed
form. Nevertheless, given the multiple number of different
clinicians who attested at various times that the veteran was
advised of the nature of this procedure, and that he
consented to the procedure, the Board must conclude that the
preponderance of the evidence is against this aspect of his
claim.
The Board further notes the representative's contention that
the VAMC should be held to the same standard of
accountability of their records as that in cases of missing
service medical records. With respect to this contention,
the Board agrees that the absence of the consent form
certainly supports the veteran's claim and it cannot be
denied absent compelling evidence that indicates the veteran
agreed to the surgery in question. However, such compelling
evidence is of record. That is, multiple clinicians involved
in the surgery in question have indicated in writing,
contemporaneous with the operation, to include the pre-
operative check list, that the veteran was advised of the
nature of this procedure, and that he consented to the
operation. Under these circumstances, the Board must
conclude that the preponderance of the evidence is against
the claim.
The Board also finds that while the evidence is in relative
equipoise as to whether the June 18, 1999, surgical procedure
resulted in additional disability, the overwhelming
preponderance of the evidence is against a finding that such
additional disability was the result of carelessness,
negligence, lack of proper skill, error in judgment, or
similar instance of fault on the part of VA in furnishing
this medical treatment.
The Board is aware of the December 1999 statement from the VA
staff physician that the surgery performed on June 18, 1999,
damaged a nerve in the veteran's neck which limited movement
of his left shoulder. This report constitutes competent
medical evidence in support of the veteran's claim that the
surgery resulted in additional disability, as it was written
by a physician. While this clinician did not offer a
rationale and a September 2004 physician who examined the
veteran indicated otherwise, another competent opinion from a
VA physician in September 2004 is to the effect that such
additional disability was at least as likely as not secondary
to the surgery in question. However, the question remains
whether such additional disability was the result of
carelessness, negligence, lack of proper skill, error in
judgment, or similar instance of fault on the part of VA in
furnishing this medical treatment.
The reports of the September 2004 VA dental examination,
examination of the esophagus and related areas, and
orthopedic examination constitute probative evidence that the
surgery did not result in an additional disability that was
the result of carelessness, negligence, lack of proper skill,
error in judgment, or similar instance of fault on the part
of VA in furnishing this medical treatment. Moreover, these
opinions outweigh the December 1999 statement by the VA staff
physician. The 2004 opinions were made by two physicians and
a dentist. They are based on a review of the veteran's
medical records and current examination findings. The
opinions are supported with references to current examination
results, physical findings set forth in the medical record,
and the veteran's post-surgical history. This fact is
particularly important, in the Board's judgment, as the
references make for a more convincing rationale.
As a layperson, the veteran is not competent to provide an
opinion requiring medical knowledge, such as a question of
medical causation or diagnosis. Espiritu v. Derwinski, 2
Vet.App. 492 (1992). As a result, his own assertions do not
constitute competent medical evidence that the June 18, 1999,
surgical procedure resulted in an additional disability that
was the result of carelessness, negligence, lack of proper
skill, error in judgment, or similar instance of fault on the
part of VA in furnishing this medical treatment.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not for application.
See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990);
Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001).
ORDER
Entitlement to compensation under 38 U.S.C.A. § 1151 for
residuals of a total laryngectomy, left modified radical neck
dissection and right modified radical neck dissection,
performed on June 18, 1999, is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs